Pharmacist Comes Before the Board of Pharmacy Again

Issue of the Case

A pharmacist in a western state foundhimself before the Board of Pharmacy asecond time and received sanctionsfrom the agency for professional lapses.He appealed that decision to a local courtand then to the state's Court of Appeals,making 3 arguments on appeal: (1) thathis actions or shortcomings did not constitute"unprofessional conduct," (2) thathis performance met the standard ofcare for practicing pharmacists, and(3) that the Board erred in considering hisearlier interaction with them when decidingthis later allegation.

Facts of the Case

A patient, who was a nursing home resident,received a medication punch-outcard labeled Lanoxin, the proper medication,but which actually contained levothyroxine.The card containing the medicationhad been prepared for the patient totake with him on vacation to Florida. Thepatient consumed 24 doses of the erroneousmedication before the error wasdiscovered by a pharmacist in Florida.

The pharmacist in this case had theresponsibility for final verification of themedication with the prescription beforedispensing, and he did make the erroneousaffirmation that they matched. Hewas charged by the Board of Pharmacywith violating 3 separate provisions inthe state's pharmacy practice statute aswell as a Board regulation.

The Board issued a statement ofcharges against the pharmacist, includingthe fact that the practitioner hadbeen issued a "notice of correction" theyear before the error in question here.The earlier error had also involved incorrectlyverifying a prescription for Lanoxin.At a conference preceding the Board ofPharmacy hearing on this latest allegedtransgression, the pharmacist sought todelete the portion of the charge thatreferred to the earlier incident. He wassuccessful. During the subsequent hearingon the second dispensing error, thepharmacist admitted that he wasresponsible for the deviation from theprescriber's request.

The sanctions imposed by the Boardincluded a 24-month period of probation,20 hours of community service focusedon educating patients about preventionof medication errors, 10 hours of continuingeducation credits focused on professionalethics, and a requirement thatthe pharmacist submit a plan of correctionto prevent future medication errors.

The Court's Ruling

The Court denied the challenge to thedecision of the Board and denied theappeal by the pharmacist. The sanctionsimposed by the Board were deemedreasonable.

The Court's Reasoning

The Board had found that each pharmacistinvolved with a misfill has theresponsibility of devising a personal planfor corrective action. The pharmacist hadfailed to provide such a plan for preventingsimilar errors in the future. Moreover,he did not acknowledge that he had suchan obligation, despite having received awritten communication from the Boardrequesting a "full and complete writtenresponse" and "a detailed plan of action" to make reoccurrences less likely.

The Board concluded that his responsesto the charges against him, orperhaps better characterized as a failureto respond with a formulation of aplan, demonstrated refusal to acceptpersonal responsibility for his errors. Inthe view of the Board, this is an inherentduty associated with the practiceof pharmacy, and the pharmacist's lackof personal accountability constitutesunprofessional conduct.

Next, the issue of whether or not standardsof professional conduct had beenmet was before the Board. The pharmacistpresented an expert witness—a professorof pharmacy who testified thatthere is an average error rate in the practiceof the profession that is a "risk thatcan't be avoided." Concluding that theerror rate among pharmacists is about2%, the expert witness presented theview that the pharmacist's 2 errors in a15-month time span was below the average.He continued that, because theaverage error rate is a risk that cannot beavoided, the pharmacist's errors werenot unreasonable, and his performancedid not fall below the professional standardof care. The Court ruled thatbecause the Board is composed almostexclusively of pharmacists, it can draw itsown conclusions about acceptable standardsof practice for members of the profession,as well as its own conclusionsabout the level of risk of harm to thepatient due to having received theimproper medications.

Third, the Court ruled that, with regardto the Board taking into account the earliersimilar incident, it was true that thepharmacist had language about thatstricken from the charges at the preliminaryproceeding; however, he and hisexpert witness repeatedly referred to itduring the hearing, "opening the door" toits use by the Board.

The local Superior Court had affirmedthe decision by the Board of Pharmacy,and now the state-level Court of Appealsalso agreed with all the above conclusionsby the Board.

Dr. Fink is professor of pharmacylaw and policy at theUniversity of KentuckyCollege of Pharmacy,Lexington.